Charter challenge of legal aid fees could happen

OTTAWA - Mounting court rulings that Ontario’s legal aid fees are woefully inadequate could ultimately lead to a Charter challenge of the rates, a leading Ottawa defence lawyer says.

The judgments - which hiked fees paid to legal aid counsel by more than 100 per cent in some cases - are also drawing attention to a legal aid system that could contribute to wrongful convictions, says the head of the province’s Criminal Lawyers’ Association.

There have been at least six rulings since July 2007 that resulted in court-ordered increases to fees that otherwise would have been set at the legal aid maximum of $96.95 an hour, or lower.

In the latest, Superior Court Justice Colin McKinnon ruled earlier this month the provincial Crown would have to pay Ottawa criminal defence lawyer Catherine Huot $150 an hour as amicus curiae in a murder case being heard by McKinnon.

McKinnon listed the legal complexity of the case, Huot’s familiarity with it, the defendant’s preference for her as amicus curiae while he defends himself, and her private rate of up to $275 an hour among the reasons for his decision. Huot sought the order after the attorney general’s department had not responded to invoices she submitted.

Huot says the growing stack of judgments increasing fees for counsel acting under legal aid provided her with a substantial source of authorities to argue she should be paid more than the $87 an hour she would otherwise have received after seven years at bar.

“I didn’t just pick a number out of the hat,” she tells Law Times, adding she believes the number of court-ordered increases where lawyers are acting as amicus curiae under legal aid will increase.
“I looked at what they were earning and I asked for it. If you’re appointed by the court, I don’t think it will stop. I think people will keep asking,” she says.

The debate over Ontario’s legal aid rate is over a decade old - two earlier court-ordered increases in fees occurred in 2003 - but it has reached the point where concern is growing over the effect it may be having on the justice system.

Frank Addario, president of the CLA, says the growing share of lawyers working on legal aid with little or no direct trial experience in homicide cases could lead to a miscarriage of justice - if it has not already.
He lamented the passing more than 10 years ago of a mentoring system that was once common under legal aid, with a senior and a junior lawyer both taking a homicide case to trial under legal aid.

“Whether or not it has led to a wrongful conviction in a specific case is something that is probably better spoken to by some one who investigates individual cases,” he tells Law Times. “I can certainly say that universally, judges are telling me they’re getting less-experienced lawyers doing more serious cases, and the Crown attorneys are telling me the same thing, and the defence bar is telling me the same thing.

“It does increase the chances of a wrongful conviction. Our experience is that it takes upward of five to 15 years to uncover wrongful convictions. It is a bit early, but it is around the time when we will start to see that,” he says.

Addario adds the likelihood of a wrongful conviction for lesser crimes may be greater, saying, “It’s something we think about all the time in the criminal bar. We worry that with the attention and notoriety given to homicide cases, what happens to all those other cases that just don’t get the attention and the [counsel] experience that they deserve.”

A co-president of the Association in Defence of the Wrongly Convicted agrees, saying six of eight cases of recent exoneration for past murder convictions involved legal aid counsel at original trials.
Co-president Elisabeth Widner said she and her colleagues at the association are also concerned inexperience by low-paid legal aid lawyers in summary convictions may be causing more problems than are known.

“We’ve long suspected that provincial court is probably where you’re going to find a lot of these,” she tells Law Times. “Most criminal cases get resolved one way or another in provincial court, and they get resolved quickly and cheaply. That’s where you’re going to find people taking these plea deals, you know, they’re just being convicted and they’re not really good convictions.”

The defence lawyers are quick to point out Ontario pays private lawyers $200 an hour when they are hired as Crown agents for prosecution, and argue the legal aid defence lawyers should be closer to that level.
Mark Ertel, president of the Defence Counsel Association of Ottawa, says a Charter challenge could be possible under s. 11.d - a “fair and public hearing” - or the principles of fundamental justice guaranteed under s. 7.

“I think the way the courts have gone, the way the jurisprudence has gone, you could have a Charter challenge, but only on a case-by-case basis,” he tells Law Times. “It’s not impossible, but it would be really hard to get the evidentiary foundation.”

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